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Roe v. Wade, the Supreme Court ruling 40 years ago that established a constitutional right to abortion, was not handed down alone. Byrne explains that Roe established a right to abortion "to preserve a woman's health," but that this right is less than absolute (a limitation Byrne calls "reasonable"). It was the companion ruling, in Doe v. Bolton, that put flesh on the bones of the concept of a woman's health—far too much flesh for Byrne. He writes, "Doe's interpretation of the meaning of 'health' is so broad that it encompasses just about every possible reason—real or concocted—put forward by the woman and her doctor to legally justify an abortion up to and including the moment of birth."
Here's the passage in Doe that distresses Byrne. "We agree with the District Court . . . that the medical judgment may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman's age—relevant to the wellbeing of the patient. All these factors may relate to health."
The passage continues, though Byrne has stopped quoting it: "This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman."
Byrne had more than one way to proceed with the legal history he'd dusted off. He might have championed a new way of thinking about abortion reform. Most Americans favor restrictions on abortion, he writes, but most Americans don't want Roe v. Wade overturned. We don’t have to overturn it! he might have announced. If the Supreme Court were to overturn only Doe v. Bolton, we could then write far more reasonable laws defining women's health.
But writing to persuade is not Byrne's way.
Although it's the most natural thing in the world for a cluster of legal rulings to be subsumed in the most salient of those rulings, Byrne finds the failure of media stories on Roe's 40th anniversary to give Doe its due to be an "omission . . . extreme in its ignorance or dishonesty." Rarely does "the abortion industry and its ideological and moneyed supporters . . . or the media acknowledge Doe's existence."
Byrne goes on, "The failure to view Roe and Doe as inseparable have left most Americans ignorant of the consequences of the two cases. Thus, polls that ask, 'Do you want Roe v. Wade overturned?' are a sham, worthless."
If Roe and Doe are inseparable, then what is the harm in saying Roe and meaning, whether you realize it or not, Roe and Doe together? And why does that technical inaccuracy make those polls a worthless sham?
For that matter, why are Roe and Doe inseparable? I'd expect Byrne to be arguing that the way forward is to separate them. If they can't be separated, what's the point of insulting everybody who lumps them together?
Then again, a good screaming fit quickens the pulse and stimulates the juices. It might even keep the flu at bay.